Published on:

Defendant Refuses to Take Chemical Test


A man was arrested and was charged of Patronizing a Prostitute and Operating a Motor Vehicle While under the Influence of Alcohol or DUI which is also a misdemeanor. The accused man refused to submit to a chemical test and upon arraignment and his license was duly suspended. The accused moved for an order overturning any statements he made and any evidence of his refusal. A New York Criminal Lawyer said the hearing was ordered and was conducted before the Court. At the outset of the hearing, the specific nature of the accused man’s application was clarified. The accused moved on two grounds to overturn the evidence of the statements he made on videotape at the time he was given refusal warnings. The accused man asserted that he was arrested without credible cause and that his videotaped statements should be overturned as the fruit of his illegal arrest and its outcome. He also asserted that the same videotaped statements should also be overturned as evidence of a refusal to consent to a chemical test that was made only after inadequate refusal warnings were given.

At the hearing, the complainant presented the testimonies of the arresting officer and a police officer together with a videotape of the accused while the accused presented no evidence. The arresting officer’s testimony showed that shortly after midnight of the arrest date, the accused drove his car onto the set of an undercover police prostitution operation. A New York Criminal Lawyer said the accused approached a female undercover officer who was posing as a prostitute and offered to pay her twenty dollars in return for a sex act. The undercover officer communicated to other police officers by pre-arranged signal that an offer had been made and the other officers moved in and stopped the accused within a few seconds after his offer. A police officer approached the accused who was still seated in the driver’s seat of his car with the car engine still running. The police officer conferred briefly by a walkie-talkie with the undercover officer who confirmed that the accused had offered her money for sex. The accused smelled strongly of alcohol and appeared to be very intoxicated in that his eyes were bloodshot and he was swaying and babbling. The police officer asked the accused to step out of his car and when the car door opened the accused fell face first into the street and had to be pulled to his feet by the police. A preliminary field test was administered and the accused man’s blood alcohol content measured a great apparent evidence of intoxication. The accused was arrested for the crimes of Patronizing a Prostitute and DWI and was taken to a police station. The police did not read the accused of his Miranda rights at any subsequent time.

The police attempted to give the accused his refusal warnings and the procedure was videotaped. The accused speaks Spanish and accordingly, the police officers properly decided to give the accused his refusal warnings in Spanish. The police had a pre-recorded videotape of a woman delivering refusal warnings in Spanish on hand. The accused was videotaped as he stood side by side with the police officer and another arresting officer and watched the Spanish language videotape version of the refusal warnings being played on a television set. The room was arranged in such a way that when a viewer watches the videotape of the accused, it is not apparent that the accused is looking at a television set or where the off-screen woman’s voice delivering the refusal warnings in Spanish is coming from.

The accused responded to the pre-recorded Spanish language refusal warning by making a series of remarks that were not directly responsive to the question whether or not he would consent to the chemical test. The accused asserts that it is the first time he has gotten drunk and that everyone gets drunk at Christmas time. He exclaims with considerable enthusiasm that the woman in the pre-recorded Spanish language videotape is pretty. The accused grows increasingly difficult to understand by muttering that he is becoming crazy and nervous.

The Vehicle and Traffic Law provides that evidence of the accused man’s refusal to submit to a chemical test shall be admissible at the accused man’s trial on the criminal charge of DWI, but only upon a showing by the complainant that the accused persisted in refusing to take the test after being given sufficient warning in clear and unequivocal language.

At the conclusion of the combined Refusal hearing in the case, the Court issued an oral decision indicating that the accused man’s motion would be denied unless he could point to persuasive authority leading to a different conclusion and it can be found that the accused had not been given complete refusal warnings. During the oral argument at the conclusion of the hearing, the complainant properly conceded that the accused had not been given any Miranda warnings and had not been given adequate refusal warnings. The complainant properly conceded that the evidence of the accused man’s refusal could not be presented to the jury at trial. However the complainant did argue that they should be permitted to introduce into evidence at trial a redacted version of the videotape made by the accused at the police station at the time when the inadequate refusal warnings were given. Specifically, the complainant proposed that the passages of the videotape in which the accused was given partial refusal warnings and refused to take the chemical test would be eliminated, but that the other remaining passages would be admitted into evidence before the jury in order to show the accused man’s condition and appearance close to the time of his arrest. The Court directed the complainant to submit a videotape redacted in the form proposed by the complainant. The Court further directed the parties to submit legal memoranda on the issue whether any portion of the accused man’s videotaped statements should be admitted into evidence at trial notwithstanding the fact that the accused was given inadequate refusal warnings.

The accused is right to raise the concern because it is obvious that the videotape has been redacted, the jury may speculate as to what has been deleted from the tape. However there is no good reason to doubt that an appropriate limiting instruction can be fashioned to meet the concern. In addition, it should be noted that as a technical matter the redacted video is very choppy because of the many edits made. It gives undue emphasis to the fact that certain material has been deleted. The Court therefore requests, but does not direct, that the complainant do whatever is possible as a mechanical matter to smooth out the redacted videotape so that the edits are not quite so jarring. Accordingly, the Court finds that the complainant may present the redacted videotape as evidence at trial against evidence of a refusal.

The Court concludes that even though no Miranda warnings were given, the redacted videotape may be played for the jury at trial without violating the accused man’s right against self-incrimination. The Court also finds that the accused man’s statements in the case were not the product of interrogation against self-incrimination.

Accordingly, the Court finds that the partial refusal warning that was given to the accused did not constitute interrogation and that the redacted videotape may therefore be admitted in evidence at trial without violating the accused man’s right against self-incrimination. For all the reasons stated, the Court holds that the complainant may not introduce at trial any evidence of the accused man’s refusal to take the chemical test, but the complainant may introduce into evidence at trial the videotape of the accused in the redacted form they have proposed. The Assistant District Attorney and the defense counsel are directed to alert the trial judge at the outset of the trial to the need for jury instructions in accordance with the opinion as to the limited use of the videotape and for the reasons why it has been redacted.

If you are arrested for unlawfully operating a motor vehicle, sex crimes or drug possession, you must have an attorney on your side to assist you on what to do. Call Stephen Bilkis and Associates today.

Contact Information